Short Summary
This order concerns a side proceeding in which the plaintiffs (DISH Technologies and Sling TV) sought information from a third party, Cloudflare Inc., under Rule 191 Alt. 2 of the Rules of Procedure in connection with the main infringement proceedings concerning European Patent EP 2 479 680. The rapporteur addressed the plaintiffs' request that he determine that the sought information is not decisive for the decision, combined with a conditional withdrawal of the information request. The court held that such a request for a preliminary determination is inadmissible, but that the conditional withdrawal is to be interpreted as making the information request itself conditional on the information being decisive, and that such an internal procedural condition is permissible even when the information is sought from a non-party.
Detailed Summary
This order was issued by the rapporteur (Böttcher) of the Local Division Mannheim in case UPC_CFI_471/2023, concerning European Patent EP 2 479 680. The plaintiffs are DISH Technologies L.L.C. and Sling TV L.L.C., both based in Englewood, Colorado, USA. The defendants are six entities of the AYLO group (AYLO Premium Ltd, AYLO Billing Limited, AYLO Freesites Ltd, AYLO Billing US Corp., Brockwell Group LLC, and Bridgemaze Group LLC). Cloudflare Inc., a Delaware corporation, is a third party to the main proceedings.
In the main infringement proceedings, the plaintiffs had initiated a side proceeding (App_50861/2024) seeking the transmission of information from the third party, Cloudflare Inc., under Rule 191 Alt. 2 of the Rules of Procedure. Both the defendants and Cloudflare opposed the requested information transmission, with Cloudflare reserving further arguments pending access to the main case file. To defend itself against the information request, Cloudflare had previously filed an application under Rules 262.1(b) and 262.3 RoP for access to the main case file (App_10340/2025 and App_10341/2025), including access to confidential information concerning the allegedly infringing embodiments of the defendants, subject to confidentiality obligations imposed on its legal representatives and two named natural persons.
By submission dated 12 March 2025 (App_12073/2025), the plaintiffs requested that the rapporteur determine that the information sought from Cloudflare is not decisive for the decision in the main proceedings, and combined this request with a conditional withdrawal of their Rule 191 Alt. 2 information request, the condition being that the court find the information lacks decisiveness.
& Analysis
The rapporteur addressed three key legal questions. First, he held that an applicant's request under Rule 191 Alt. 2 RoP asking the rapporteur to determine that the sought information is not decisive for the decision is inadmissible as a matter of procedure. Second, the rapporteur interpreted the plaintiffs' combined request — a request for a preliminary determination coupled with a conditional withdrawal — as effectively making the Rule 191 Alt. 2 information request itself conditional upon the information being decisive for the outcome. Third, the rapporteur held that such an internal procedural condition is permissible, even where the information transmission under Rule 191 Alt. 2 RoP is sought from a third party not involved in the main proceedings.
Final Order & Ruling
The rapporteur issued an order addressing the procedural framework for conditional Rule 191 Alt. 2 RoP information requests directed at non-parties. The order establishes that while a preliminary determination of non-decisiveness is inadmissible, applicants may validly condition their information requests on the relevance of the sought information, and such conditions are to be treated as permissible internal procedural conditions. The full text of the order appears to be cut off in the provided source, but the headnotes (Leitsätze) clearly set out the three principles governing the admissibility and interpretation of conditional information requests under Rule 191 Alt. 2 RoP.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Mannheim (DE) Local Division. Understanding the court's reasoning in DISH Technologies L.L.C., Sling TV L.L.C. vs Cloudflare. Inc. is valuable context for structuring arguments or assessing risk in similar proceedings.
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